The Kansas Supreme Court released the following published decisions today:

The Supreme Court indefinitely suspended Deines' license to practice law for multiple violations of the Kansas Rules of Professional Conduct, based on a series of complaints alleging lack of diligence and neglect of duties to clients. Deines, of Lawrence, did not contest the allegations.

In a per curiam opinion, the Supreme Court disciplined Crandall, of Leawood, by imposing a six-month suspension of his license to practice law. The court imposed this discipline for violations of Kansas Rules of Professional Conduct concerning competence, diligence, communication, unreasonable fees, concurrent conflicts of interest, and conduct prejudicial to the administration of justice.

The Supreme Court affirmed Williams' convictions in Sedgwick County for aggravated burglary, aggravated battery, aggravated assault, and domestic battery following a break-in and altercation at his girlfriend's home. He raised six issues before on appeal and the court rejected his arguments, holding: 1) sufficient evidence supported Williams' aggravated burglary conviction; 2) Williams' convictions for aggravated burglary and domestic battery were not mutually exclusive; 3) the district court did not improperly instruct the jury on aggravated assault; 4) the district court should have instructed the jury on assault as a lesser-included offense of aggravated assault and on battery as a lesser-included offense of aggravated battery, but neither error was clearly erroneous and, therefore, do not warrant reversal of Williams' convictions; 5) Kansas' aggravated battery statute, K.S.A. 21-5413(b)(1)(B), is not unconstitutionally vague; and 6) cumulative error did not deprive Williams of a fair trial.

In an opinion written by Justice Caleb Stegall, the Supreme Court held that Sims' jury instructions were legally correct and affirmed his premeditation murder conviction. At trial, the Wyandotte County District Court instructed the jury on the lesser-included offenses of premeditated murder sequentially and in descending order of severity. On appeal, Sims claimed the instructions were legally erroneous because they did not permit the jury to consider imperfect self-defense voluntary manslaughter simultaneously with premeditated first-degree murder and intentional second-degree murder. The Supreme Court disagreed, holding that a district court is not required to instruct a jury to consider a lesser-included homicide offense simultaneously with any greater homicide offense, overruling State v. Graham, 275 Kan. 831, 69 P.3d 563 (2003). Justice Beier, joined by Justices Luckert and Johnson, concurred in the result but disagreed with the overruling of Graham.

The Supreme Court upheld the Ingham's Reno County conviction on one count of possession or use of a commercial explosive. Ingham raised several arguments asserting the State used prejudicial language in describing the explosive, that a witness for the State improperly testified about a legal conclusion, and that the instructions given to the jury were either insufficient or improperly directed the jury to a specific conclusion. The Court of Appeals affirmed, and, on discretionary review, the Supreme Court affirmed the district court and the Court of Appeals. In a divided opinion, Justice Eric Rosen, writing for the court, concluded that any errors were harmless. Justices Nuss, Biles, and Stegall concurred in separate opinions. Justice Stegall suggested possible constitutional concerns with the statute under which Ingham was convicted but noted that the issue was not argued by the parties. A minority of the court would have found cumulative prejudicial errors in the way the case was presented to the jury and in the way the jury was instructed.

Hayes' Johnson County murder case returned to the Supreme Court for a second time. Previously, a jury convicted Hayes of premeditated first-degree murder for the shooting death of his estranged wife, and the sentencing judge imposed the enhanced sentence of life without the possibility of parole for 50 years (hard-50 sentence). On direct appeal, the Supreme Court affirmed Hayes' murder conviction but remanded to the trial court for resentencing because Kansas' statutory scheme for imposing the hard-50 sentence violated Hayes' constitutional right to a jury trial. On remand, the district court applied intervening curative legislation to again impose a hard-50 sentence. In this appeal, the Supreme Court rejected Hayes' challenge to his new sentence, holding retroactive application of the new hard-50 sentencing scheme did not violate the constitutional prohibition on ex post facto laws.

The Supreme Court reversed the Wyandotte County District Court and remanded Rice's case for consideration of possibly ordering probation on the record during resentencing in this pre-Kansas Sentencing Guidelines Act case. Rice argued the resentencing court should have ordered a new presentence investigation report and it mistakenly stated it did not have authority to grant him probation. The Supreme Court unanimously held that Rice was not prejudiced by denial of his request for a new presentence investigation report. But, the court found the sentencing court abused its discretion by not understanding its own authority to consider probation. Accordingly, the court reversed and remanded for the sentencing court to exercise its discretion regarding probation on the record.

The Kansas Supreme Court released the following published decision on November 16:

The Supreme Court held that Leavenworth County District Court erred in denying Martin her statutory right to a restitution hearing. The court reversed and remanded for a restitution hearing to establish the total amount of damages caused by Martin's crimes.

The Supreme Court upheld Williams' first-degree premediated murder conviction for the 2013 killing of Tysha Carvin during a domestic dispute in Wyandotte County. Williams claimed the prosecutor gave personal opinions about Williams' credibility, challenged potential jurors for racially discriminatory reasons, and used overly gruesome autopsy photographs to inflame the jury. The court rejected each argument.

Concerning the first matter, Williams asserted his gun simply went off during a struggle, which the prosecutor characterized at one point during closing argument as "fabricated," noting the gun fired seven times.

In a unanimous decision written by Justice Dan Biles, the court noted the prosecutor carefully detailed the evidence that illustrated why Williams' theory was infeasible.

"In Williams' case, the prosecutor's statements about Williams' trustworthiness were within proper bounds," Biles wrote, "although words like 'fabricated' elevate the need for clarity in a prosecutor's remarks to tie the point being made to the evidence."

As to the other issues, the court held the trial judge did not abuse his discretion in rejecting Williams' arguments about the State's reasons for challenging the potential jurors and in allowing the five photographs into evidence.

The Supreme Court reversed the Johnson County District Court's grant of summary judgment to The Bar Plan and remanded with directions. In this insurance coverage dispute, Becker asserted the doctrine of estoppel applied to prevent The Bar Plan from denying coverage of his claim. In a per curiam decision, the court held that an insurer that undertakes a defense of the insured without adequately reserving its rights to later disclaim coverage may later be estopped from disclaiming coverage if the insured detrimentally relied on the insurer's defense. But in this case, the question of whether the reservation of rights was adequate was a factual question and therefore not appropriate for summary judgment. The court reversed summary judgment and remanded for further fact finding on whether the timeliness of The Bar Plan's reservation of rights bars Becker's claim of estoppel.

The Supreme Court affirmed the Sedgwick County District Court's summary denial of Alford's motion to correct illegal sentence. Alford argued his hard-40 sentence was illegal because the jury considered inadmissible hearsay evidence at sentencing and the court erroneously instructed the jury. The court unanimously rejected both of Alford's claims. It held that Alford's sentence was not illegal because it conformed to the applicable statutory provisions in both character and term of authorized punishment. Accordingly, the court affirmed the district court's decision

The Kansas Supreme Court is accepting public comment on proposed changes to Rules 602 through 627 relating to complaints against judges.

Through the proposed amendments, the court seeks to create a clearer and more comprehensive complaint process for the benefit of both complainants and judges.

The court will accept comment until 5 p.m. Monday, December 17, 2018. Comment may be made by email to rulenotice@kscourts.org with "Rules 602-627" in the subject line.

The proposed amended rules ares available for review on the Kansas Supreme Court website at www.kscourts.org under the heading What's New.

Rules 602 through 627 govern the Commission on Judicial Qualifications and its role helping the Supreme Court exercise its responsibility in judicial disciplinary matters. The Supreme Court created the commission in 1974 under authority granted by Article 3 of the Kansas Constitution.

Judges are guided by the Kansas Code of Judicial Conduct, which establishes standards for ethical conduct by judges and judicial candidates. The code's guidance is to help judges maintain the highest standards of judicial and personal conduct, and to provide a basis for regulating their conduct through disciplinary procedures

In a per curiam opinion, the Supreme Court disciplined Michael J. Studtmann, Wichita, by published censure. The court further ordered Studtmann to revise his proposed engagement letter and fully cooperate with a disciplinary administrator's audit of his trust account. The court imposed this discipline for violations of Kansas Rules of Professional Conduct concerning the scope of representation, fees, conflict of interest, accepting compensation for representation of a client from someone other than the client, and termination of the representation.

The Supreme Court reversed a Wyandotte County District Court order terminating a natural father's parental rights, saying that a natural father "must have had a real-world opportunity to take on his obligation under the circumstances presented." The high court ordered the lower court to expedite a custodial transition to unite the father with the now 2-year-old boy.

The case arose after the mother, who said she did not know she was pregnant until the day she gave birth, immediately put the newborn up for adoption through Kansas Children's Service League. A KCSL social work supervisor contacted the person who the mother thought was the child's father to inform him of the pregnancy and birth. "This news shocked him," the court's decision noted.

A few days later, the father filed a paternity action in Shawnee County District Court to establish paternity, his support obligations, and an order directing that he be the residential parent. But that action was stayed in favor of the Wyandotte County litigation, which the prospective adoptive parents filed the day before the Shawnee County paternity suit. The dispute in Wyandotte County centered on whether the father made reasonable efforts to support or communicate with the child under the unusual circumstances presented.

In reversing the lower courts, the Supreme Court noted "a series of hurdles" were placed between the father and his child "to increase the likelihood of a successful adoption." The court added, "Termination of parental rights should not be determined by which side schemes to be shrewder or more strategic."

The Supreme Court reversed the Court of Appeals decision dismissing Weekes' appeal for lack of appellate jurisdiction and remanded to the Court of Appeals to consider the merits of Weekes' argument that the district court erred in failing to modify Weekes' original sentence after revoking his probation.

The Supreme Court affirmed Anderson's Bourbon County convictions of child abuse and felony murder in a shaken baby case involving the death of a 6-month-old child left alone in Anderson's care. The court rejected Anderson's argument that the Bourbon County District Court erred in instructing the jury. Further, the court held that even assuming that the district court erred in allowing a witness to testify about Anderson's prior aggression towards the child, this alleged error was harmless because another witnesses testified to the same effect without objection in the trial court. The court also found three instances of prosecutorial error during closing argument but held that they did not deny Anderson a fair trial. Finally, the court held that the cumulative effect of prosecutorial error and the alleged erroneous witness testimony did not deny Anderson a fair trial.

The Supreme Court affirmed Lowery's convictions for the premeditated first-degree murder of Tiffany Davenport-Ray, the attempted premeditated first-degree murder of Melvin Ray, criminal discharge of a firearm at an occupied dwelling, and drug crimes. Lowery's homicide convictions emanated from a shooting between two vehicles travelling down Kansas Avenue in Topeka, Kansas.

The court rejected Lowery's challenges to sufficiency of the evidence, the voluntariness of his statements to law enforcement, and to the admission of certain testimony under the law on cross-examination and hearsay. The court declined to review Lowery's challenge to a jury instruction because Lowery invited any error that may have been present.

The court found three instances of prosecutorial error; found a violation of Lowery's statutory right to be present at a motion hearing; and found that the district court erred in refusing to redact portions of a video recording of Lowery's law enforcement interview admitted into evidence at trial. The court held that these errors, individually and cumulatively, did not require reversal of Lowery's convictions.

A majority of the Supreme Court affirmed Miller's Douglas Country jury conviction on retrial for the premediated first-degree murder of his wife, Mary Miller. Miller was first convicted of his wife's murder in 2005, and that jury verdict was affirmed by the Supreme Court. In 2012, the Court of Appeals granted Miller's motion for postconviction relief and ordered a new trial. The Supreme Court affirmed the Court of Appeals decision to order a new trial. Upon retrial, the new jury also convicted Miller of premeditated first-degree murder, and, again, he appealed to the Supreme Court.

In his appeal of the retrial, the court held that the district court's denial of Miller's motion for a change of venue based on publicity surrounding his first trial, and corresponding pretrial publicity on retrial, did not deny Miller his constitutional right to a trial by an impartial jury. The court further assumed without deciding that the district court erroneously denied a defense for-cause challenge to a prospective juror, and held this assumed error did not require reversal because the defense had the opportunity to cure it with a peremptory challenge.

The court also rejected Miller's claim that the district court erred in refusing to bifurcate his trial into two phases so that the jury would not be influenced by evidence of motive, i.e., his extramarital affair, when determining whether Mary was, in fact killed. Additionally, the court held Miller failed to show that the district court's instruction to the jury regarding evidence of Miller's extramarital affair and access to dating websites was erroneous because the instruction limited use of this evidence to determining Miller's motive and intent.

The court also held that the district court did not abuse its discretion in refusing to disqualify the entire Douglas County District Attorney's Office from prosecuting the case based on Miller's allegation of a conflict of interest because Miller's son (a State witness) lived rent-free with an Assistant Douglas County District Attorney, who was not participating in Miller's trial. The court agreed with the district court that the safeguards put in place were sufficient to assure that Miller was not prejudiced by the living arrangement. The court further held that the district court did not abuse its discretion in refusing to disqualify the District Attorney's Office as a remedy for the office's failure to notify the defense of a day planner found in an airport parking lot that contained attorney-client privileged information involving Miller's defense. The court reasoned that the District Attorney's Office's handling of the planner was unprofessional but there was no showing of prejudice to the defense because the information in the planner aligned with Miller's testimony at his first trial.

The court rejected Miller's argument that the trial judge committed misconduct when ruling on objections, finding that the judge's rulings were not erroneous, much less misconduct. Further, the court rejected Miller's challenge to the sufficiency of the evidence to establish that Mary's death was a homicide, reasoning a forensic pathologist testified for the State to this effect and Miller did not preserve his appellate challenge to this testimony by timely and specifically objecting at trial. And, the court rejected Miller's arguments that the district court should have granted defense counsel's mistrial motions based on the State's improper reference to pornography and the trial court allowing the State to present rebuttal expert witness testimony, reasoning any error was harmless. Further, the court found no reversible error in allowing evidence of Miller's extramarital affair, evidence of Miller's access to dating websites, evidence of a life insurance policy, the admission of graphic photographs, and the admission of Miller's prior trial testimony.

Justice Johnson and assigned District Judge Wendel W. Wurst each wrote dissents and both would have reversed Miller's conviction and remanded for a new trial because Miller was denied his right to a fair trial. Justice Johnson opined that Miller was denied a fair trial due to the cumulative effect of the following errors: the retrial's venue; the district court allowing a juror who should have been stricken for cause to sit on the jury; the Assistant Douglas County Attorney providing rent-free lodging to a principle State's witness; the Douglas County Attorney's Office's failure to turn over privileged conversations Miller had with his attorney; the district court's decision to allow evidence of graphic photos and of Miller accessing dating websites; and the forensic pathologist's expert opinion on the cause of death, which Justice Johnson opined was improperly based on the pathologist assessing witness credibility and weighing conflicting evidence. District Judge Wurst agreed with Justice Johnson and added that he would have found Miller's trial objections were sufficient to preserve for appellate review Miller's challenge to the forensic pathologist's testimony on Mary's cause of death.

The Kansas Supreme Court released the following published decisions today:

The Supreme Court ordered the indefinite suspension of Mason, a Goodland attorney admitted in 1983 to practice law in Kansas. The suspension resulted from admitted violations of the Kansas Rules of Professional Conduct. Mason agreed he violated rules prohibiting dishonesty or misrepresentation, lack of diligence in representing a client, and failure in client communication, while representing the Goodland Medical Foundation, a nonprofit organization. The Foundation learned in 2016 that its Internal Revenue Code tax exempt status was revoked because of Mason's failure to file required documentation. When asked about this, a disciplinary hearing panel concluded, Mason "repeatedly provided false information to members of the Foundation's board," misled Foundation board members that he was working on the IRS documentation problem, and was motivated by dishonesty. The court's order noted Mason was previously suspended in 2016 for another matter, and was recently informally admonished for violating competence rules in a water rights case. The court said in ordering the indefinite suspension it considered "the serious nature of the violations detailed in the panel's report; the violations' similarity to the misconduct in the previous disciplinary case; and the respondent's affirmative statement at his earlier hearing before this court that there were no additional problems in his practice, even though he knew then he had engaged in the misconduct at issue in this case."

The Supreme Court vacated Lamone's sentence for driving under the influence based on two prior convictions for DUI and remanded the case for resentencing. Lamone's criminal history score was based on two previous DUI convictions under Wichita's Municipal Code. The court held that those convictions could not be used to enhance the sentence for her current DUI. The statute defining "conviction" for purposes of counting previous DUI convictions requires that convictions from municipalities or other states prohibit the same or a narrower range of conduct as the Kansas DUI statute. The Wichita ordinance prohibited a broader range of conduct than the state statute and therefore could not be used for sentence enhancement.

The Supreme Court reversed the Court of Appeals' decision affirming the Sedgwick County District Court's decision to increase the term of Lehman's postrelease supervision. The court held that after Lehman had completely served his originally imposed postrelease supervision term, the double jeopardy provisions of the federal and state constitutions precluded the district court from imposing a longer postrelease supervision term.

The Kansas Supreme Court released the following published decisions September 21:

In an opinion written by Justice Caleb Stegall, the court unanimously reversed the Johnson County District Court's grant of summary judgment for Financial Associates Midwest, Inc., a health insurance brokerage, and Blue Cross and Blue Shield of Kansas City, a health insurance agency, and remanded the case for further proceedings. In the 1990s, Financial Associates entered into an oral agreement with three of its employees to pay them half of the override it received from Blue Cross in exchange for their work. In 2011, Blue Cross bought Financial Associates and stopped the override payments. The three employees left the agency and brought a breach of contract claim.

The district court ruled the claim was precluded by the statute of frauds, which requires that any agreement that cannot be performed within one year must be reduced to writing. The Court of Appeals affirmed and held that to satisfy the full-performance exception to the statute of frauds, the former employees had to fully perform their part of the agreement and the only thing left to be done was for the former employer to pay. Because the duty to pay depended on the actions of third parties (the policyholders' decision to renew), the panel ruled in favor of Financial Associates and Blue Cross. The Supreme Court disagreed, holding that full performance by one party, standing alone, is sufficient to remove the agreement from the statute of frauds. The court further held that the former employees fulfilled their end of the bargain, the full-performance exception applied, and the alleged oral contract was removed from the statute of frauds.

Alain Ellis and her husband Dr. Harvey Ellis Sr. both executed living trusts. While acting as trustee, Harvey improperly converted a substantial amount from Alain's trust and placed the converted assets into his own trust. These actions were not discovered until after Harvey died. Harvey's trust returned funds improperly transferred. Alain's trust and its beneficiaries sued Harvey's trust and others seeking additional damages, including punitive damages and statutory double damages allowed when a trustee embezzles or knowingly converts trust property. The Sedgwick County District Court ruled both types of damages were not recoverable against a deceased trustee. The Kansas Supreme Court reversed. The court held a trust and its beneficiaries who have brought a cause of action for a trustee's breach of trust and breach of fiduciary duty may seek punitive damages under K.S.A. 58a-1002(c) from the estate of the trustee under the procedures and requirements of K.S.A. 60-3702 and 60-3703. The court also held if a beneficiary of a trust brings a cause of action alleging a deceased trustee embezzled or knowingly converted to the trustee's own use any of the personal property of the trust, the trustee's estate shall be liable for double the value of the embezzled or converted property if those damages are greater than the damages calculated under K.S.A. 58a-1002(a). Both double damages, if the greater recovery, and punitive damages may be recovered under KS.A. 58a-1002.

The Kansas Supreme Court released the following published decisions today:

The Supreme Court reversed the Court of Appeals and affirmed the Barton County District Court's grant of summary judgment for Dr. Stanley M. Hatesohl. Central Kansas Medical Center is a nonprofit general corporation licensed to operate an ambulatory surgical center. CKMC employed Hatesohl as a family practitioner providing primary care to patients. When Hatesohl left CKMC to practice medicine elsewhere, CKMC sued him for violating postemployment covenants and his new employer for tortiously interfering with the contract. The Kansas corporate practice of medicine doctrine forbids a corporation from hiring a physician to practice medicine that the corporation itself is not licensed to provide. But K.S.A. 65-425(f) creates an exception allowing corporations with an ambulatory surgical center license to employ physicians primarily for the purpose of performing surgical procedures. The Supreme Court ruled that Hatesohl's family medicine practice did not fall within the K.S.A. 65-425(f) exception because Hatesohl held no surgical privileges and did not provide medical services to the surgery department. As a result, Hatesohl's employment contract with CKMC was void for violating the corporate practice of medicine doctrine. Justice Caleb Stegall concurred, concluding that, in the appropriate case, the corporate practice of medicine doctrine should be discarded. Justice Stegall reasoned that the doctrine should be abolished because it interferes with the Legislature's public policy role, protects a private interest group, and has been rendered meaningless in the modern practice of medicine.

In an action arising from an automobile crash, the Supreme Court affirmed the Court of Appeals decision affirming the Wyandotte County District Court's denial of Wilson's motion for summary judgment with respect to Risley's claim for medical expenses that were paid by Risley's personal injury protection insurance carrier. Risley commenced his lawsuit within the two-year statute of limitations but after the 18-month window of K.S.A. 40-3113a(c), which automatically transfers the ability to sue for duplicative personal injury protection expenses from an insured to the insurer in the event the suit is not commenced within 18 months. The court found that, based on decades of caselaw since K.S.A. 40-3113a(c) was enacted in 1977, the statute's assignment provisions do not preclude an otherwise proper lawsuit by an injured person for damages, even if that lawsuit would result in duplicative personal injury protection damages for the victim, in part because the intent of the statute was to protect personal injury protection insurance carriers' subrogation rights when the insured did not commence a lawsuit in a timely manner.

In a direct appeal from a probation revocation hearing, the Supreme Court reversed the Court of Appeals decision affirming the Reno County District Court's revocation of Clapp's probation and imposition of his original underlying prison sentence. The court ordered further district court proceedings concerning compliance with the Legislature's amendments to the probation revocation statute, which provide a graduated sanctioning scheme for probationers who violate the terms of their probation release. The court directed the district court to either impose an appropriate intermediate sanction or set forth its reasons for bypassing the intermediate sanctions.

The Supreme Court affirmed the Sedgwick County District Court's decision granting the State's motion to correct Sandoval's illegal sentence. Sandoval had pleaded guilty to a 2007 charge of aggravated indecent solicitation The State did not notice a problem with Sandoval's postrelease supervision term until Sandoval's probation was revoked and he was required to serve his underlying sentence. Sandoval's original sentence required only 24 months of postrelease supervision, rather than the statutorily mandated lifetime term. At the revocation hearing, the district judge declined to modify Sandoval's underlying sentence and instead required Sandoval to serve the original sentence. The court held: After revoking probation, a district judge may either sentence anew or simply require the defendant to serve the original sentence. Because the judge imposed Sandoval's original sentence, the illegality remained, and it was susceptible to later correction on the State's motion.

The Supreme Court reversed the Finney County District Court's decision granting the State's motion to correct Roth's illegal sentence. Roth had been convicted of aggravated sexual battery and two counts of aggravated burglary. The State did not notice a problem with Roth's postrelease supervision term until Roth's probation was revoked and he was required to serve his underlying prison sentence. Roth's original sentence required only 24 months of postrelease supervision rather than the statutorily mandated lifetime term. At the revocation hearing, a district judge modified Roth's prison term to run the sentences concurrently instead of consecutively, while still requiring 24-months' postrelease supervision. The court held: By ordering the sentences to run concurrently instead of consecutively, the district judge sentenced Roth anew. When a judge sentences anew at a revocation hearing, the judge is permitted to impose "any lesser sentence," including a lesser term of postrelease supervision than otherwise mandated. Whatever may have been illegal about Roth's postrelease term when originally pronounced no longer existed after the new sentence was pronounced after revocation of his probation, and the postrelease term was therefore not subject to correction on the State's later motion to correct illegal sentence.